Exhibit 10.3


 


EXECUTION

VERSION


 


CENTERPOINT PROPERTIES TRUST


 


Series D Flexible Cumulative Redeemable Preferred Shares


 


(Five-Year Initial Fixed Rate Period)


(Liquidation Preference $1,000 Per Share)


 


CALCULATION AGENT AGREEMENT


 


THIS AGREEMENT dated as of
December 14, 2004, among CenterPoint Properties Trust (hereinafter called
the “Company”), a Maryland real estate investment trust having its
principal office at 1808 Swift Road, Oak Brook, Illinois 60523, and SunTrust
Bank, a banking corporation organized and existing under the laws of the State
of Georgia (hereinafter sometimes called the “Calculation Agent,” which
term shall, unless the context shall otherwise require, include its successors
and assigns), having a principal corporate trust office at 919 East Main
Street, Richmond, Virginia 23219.


 


Recitals of the Company


 


The Company is issuing on
the date hereof 100,000 Series D Flexible Cumulative Redeemable Preferred
Shares (the “Shares”) (Five-Year Initial Fixed Rate Period) having a
liquidation preference equivalent to $1,000 per Share under the articles
supplementary dated as of December 9, 2004 (the “Articles Supplementary”)
of the Company.  Capitalized terms used
in this Agreement and not otherwise defined herein are used as defined in the
Articles Supplementary.


 


The Initial Distribution
Rate on the Shares will be 5.377% per annum from the date of original issuance
through December 14, 2009 (the “Initial Fixed Rate Period”).  Thereafter, the Distribution Rate for the
Shares may be at Fixed Rates determined through Remarketing of the Shares for
specific periods of varying lengths or may be at Floating Rates reset quarterly
equal to 1.85%, plus the Adjustable Rate. 
The Company desires to engage the Calculation Agent to perform certain
services in connection with the Shares while the Shares bear interest at
Floating Rates.


 


NOW IT IS HEREBY, AGREED
THAT:


 


1.  The Company hereby appoints
SunTrust Bank at its corporate trust office in Richmond, Virginia, as
Calculation Agent (in such capacity, the “Calculation Agent”) for the
Shares, upon the terms and subject to the conditions herein mentioned, and
SunTrust Bank hereby accepts such appointment. 
The Calculation Agent shall act as an agent of the Company for the
purpose of determining the Floating Rates on the Shares.


 


2.  The Company has delivered to
the Calculation Agent a copy of the form of the Series D Preferred Share
Certificate and copies of the Articles Supplementary, including copies of all
terms and conditions relating to the determination of the Floating Rates
thereunder.  The Calculation Agent hereby
acknowledges its receipt of and acceptance of the form of the Series D
Preferred Share Certificate and of the Articles Supplementary, to the extent
relating to the determination of the Floating Rates on the Shares.  The Company agrees to give the Calculation
Agent written notice of the commencement of a Floating Rate Period immediately
after the Company has determined that, or is aware that, such Floating Rate
Period is to commence.  The Calculation
Agent shall have no liability for any failure to determine a Floating Rate on a
timely basis if such written notice is given to it on or after the Distribution
Determination Date preceding the commencement of the first Distribution Period
in a new Floating Rate 


 





















 


Period.  The Company agrees to give the Calculation
Agent prompt written notice of the termination of a Floating Rate Period.


 


3.  The Company hereby notifies
the Calculation Agent that the Shares are being issued on the date hereof and
acknowledges that it has delivered to the Calculation Agent the information, if
any, required to be provided by the Company for the calculation of the Floating
Rate thereunder.  The Calculation Agent
shall calculate the Floating Rate for the applicable Distribution Determination
Date as follows:


 


Except as provided below,
the Floating Rate for any Floating Rate Period for the Shares will be equal to
the Adjustable Rate (as defined below) plus 1.85%.


 


The “Adjustable Rate”
for any Distribution Period during a Floating Rate Period will be equal to the
highest of the 3-month LIBOR Rate, the 10-year Treasury CMT and the 30-year
Treasury CMT (each as defined below and collectively referred to as the “Benchmark
Rates”).  In the event that the
Calculation Agent determines in good faith that for any reason:


 


(1)                                  any
one of the Benchmark Rates cannot be determined for any Distribution Period,
the Adjustable Rate for such Distribution Period will be equal to the higher of
whichever two of such rates can be so determined;


 


(2)                                  only
one of the Benchmark Rates can be determined for any Distribution Period, the
Adjustable Rate for such Distribution Period will be equal to whichever such
rate can be so determined; or


 


(3)                                  none
of the Benchmark Rates can be determined for any Distribution Period, the
Adjustable Rate for the preceding Distribution Period will be continued for
such Distribution Period.


 


The “3-month LIBOR
Rate” means, for each Distribution Period, the arithmetic average of the
two most recent weekly quotes for deposits for U.S. Dollars having a term of
three months, as published on the first Business Day of each week during the
relevant Calendar Period (as defined below) immediately preceding the
Distribution Period for which the Floating Rate is being determined.  Such quotes will be taken from the Bloomberg
interest rate page most nearly corresponding to Telerate Page 3750 (or such
other page as may replace such page for the purpose of displaying comparable
rates) at approximately 11:00 a.m. London time on the Distribution
Determination Date.  If such rate does
not appear on the Bloomberg interest rate page most nearly corresponding to
Telerate Page 3750 (or such other page as may replace such page for the purpose
of displaying comparable rates) on the relevant date, the 3-month LIBOR Rate
will be the arithmetic mean of the rates quoted by three major banks in New
York City selected by the Calculation Agent, at approximately 11:00 a.m., New
York City time, on the Distribution Determination Date for loans in U.S. Dollars
to leading European banks for a period of three months.


 


The “10-year Treasury
CMT” means the rate determined in accordance with the following provisions:


 


(1)                                  With
respect to any Distribution Determination Date and the Distribution Period that
begins immediately thereafter, the 10-year Treasury CMT means the rate
displayed on the Bloomberg interest rate page most nearly corresponding to
Telerate Page 7051 containing the caption “...Treasury Constant Maturities... 


 


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Federal Reserve
Board Release H.15...Mondays Approximately 3:45 p.m.,” and the column for the
Designated CMT Maturity Index (as defined below).


 


(2)                                  If
such rate is no longer displayed on the page referenced in (1) above, or is not
so displayed by 3:00 p.m., New York City time, on the applicable Distribution
Determination Date, then the 10-year Treasury CMT for such Distribution
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as is published in H.15(519).


 


(3)                                  If
such rate is no longer displayed on the page referenced in (1) above, or if not
published by 3:00 p.m., New York City time, on the applicable Distribution
Determination Date, then the 10-year Treasury CMT for such Distribution
Determination Date will be such constant maturity treasury rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the applicable Distribution Determination
Date with respect to such Distribution reset date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Bloomberg interest rate page
most nearly corresponding to Telerate Page 7051 and published in H.15(519).


 


(4)                                  If
such information is not provided by 3:00 p.m., New York City time, on the
applicable Distribution Determination Date, then the 10-year Treasury CMT for
such Distribution Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 p.m., New York City
time, on such Distribution Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers in The City of New York (each, a “Reference Dealer”) selected by
the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States (“Treasury Debentures”) with
an original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year.


 


(5)                                  If
the Calculation Agent is unable to obtain three such Treasury Debentures
quotations, the 10-year Treasury CMT for the applicable Distribution
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offered
rates as of approximately 3:30 p.m., New York City time, on the applicable
Distribution Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Debentures with an original maturity of the number of
years that is the next highest to the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT Maturity Index and in
an amount of at least $100 million.


 


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(6)                                  If
three or four (and not five) of such Reference Dealers are quoting as set forth
above, then the 10-year Treasury CMT will be based on the arithmetic mean of
the offered rates obtained and neither the highest nor lowest of such quotes
will be eliminated; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as set forth above, the
10-year Treasury CMT with respect to the applicable Distribution Determination
Date will remain the 10-year Treasury CMT for the immediately preceding
Distribution Period.  If two Treasury
Debentures with an original maturity as described in the second preceding
sentence have remaining terms to maturity equally close to the Designated CMT
Maturity Index, then the quotes for the Treasury Debentures with the shorter
remaining term to maturity will be used.


 


The “30-year Treasury
CMT” has the meaning specified under the definition of 10-year Treasury
CMT, except that the Designated CMT Maturity Index for the 30-year Treasury CMT
shall be 30 years.


 


The 3-month LIBOR Rate,
the 10-year Treasury CMT and the 30-year Treasury CMT shall each be rounded to
the nearest hundredth of a percent.


 


The Floating Rate with
respect to each Floating Rate Period will be calculated as promptly as
practicable by the Calculation Agent according to the appropriate method
described above.


 


“Bloomberg” means
Bloomberg Financial Markets Commodities News.


 


“Business Day”
means a day other than (i) a Saturday or a Sunday; (ii) a day on which banks in
New York, New York are authorized or obligated by law or executive order to
remain closed; or (iii) a day on which the Company’s principal executive office
is closed for business.


 


“Calendar Period”
means a period of 180 days.


 


“Designated CMT
Maturity Index” means the original period to maturity of the U.S. Treasury
securities (10 years) with respect to which the 10-year Treasury CMT will be
calculated.


 


“Telerate Page 3750”
means the display designated on page 3750 on MoneyLine Telerate (or such other
page as may replace the 3750 page on the service or such other service as may
be nominated by the British Bankers’ Association for the purpose of displaying
London interbank offered rates for U.S. dollar deposits).


 


“Telerate Page 7051”
means the display on MoneyLine Telerate (or any successor service), on such page
(or any other page as may replace such page on that service), for the purpose
of displaying Treasury Constant Maturities as reported in H.15(519).


 


4.  Promptly following the
determination of each change to the Floating Rate applicable to the Shares, the
Calculation Agent will cause to be forwarded to the Company information
regarding such Floating Rate.


 


5.  The Calculation Agent shall
be entitled to such compensation for its services under this Agreement as the
Calculation Agent and the Company may agree, and the Company shall pay such
compensation and shall reimburse the Calculation Agent for all reasonable
expenses, including fees and expenses of its counsel, disbursements and
advances incurred or made by the Calculation Agent in connection with the services
rendered by it under this Agreement, upon receipt of such invoices as the
Company shall reasonably require.


 


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6.  Notwithstanding any
redemption of the Shares, the Company will indemnify the Calculation Agent and
its agents, custodians or nominees against any losses, liabilities, costs,
claims, actions or demands which it may incur or sustain or which may be made
against it in connection with its appointment or the exercise of its powers and
duties hereunder as well as the reasonable costs, including the reasonable
expenses and fees of counsel, in defending any claim, action or demand, except
such as may result from the gross negligence, willful misconduct or bad faith
of the Calculation Agent or any of its employees.  Except as provided in the preceding sentence,
the Calculation Agent and its agents, custodians and nominees shall incur no
liability and shall be indemnified and held harmless by the Company for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent or its agents, custodians or nominees in reliance upon (i)
the written opinion or advice of counsel, or (ii) written instructions from the
Company.


 


7.  The Calculation Agent accepts
its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees:


 


(i)                                     in
acting under this Agreement, the Calculation Agent, acting as agent for the
Company, does not assume any obligation towards, or any relationship of agency
or trust for or with, any of the purchasers of the Shares;


 


(ii)                                  unless
herein otherwise specifically provided, any order, certificate, notice, request
or communication from the Company made or given under any provision of this Agreement
shall be sufficient if signed by any person whom the Calculation Agent
reasonably believes to be a duly authorized officer or attorney-in-fact of the
Company;


 


(iii)                               the
Calculation Agent shall be obligated to perform only such duties as are set forth
specifically herein, and no other duties or obligations on the part of the
Calculation Agent, in its capacity as such, shall be implied by this Agreement;


 


(iv)                              the
Calculation Agent shall be protected and shall incur no liability for or in
respect of any action taken or omitted to be taken or anything suffered by it
or its agents, custodians or nominees in reliance upon anything contained in
the Articles Supplementary or any information supplied to it in writing by the
Company pursuant to this Agreement, including the information supplied pursuant
to paragraph 3 above;


 


(v)                                 the
Calculation Agent, whether acting for itself or in any other capacity, may
become the owner or pledgee of Shares with the same rights as it would have had
if it were not acting hereunder as Calculation Agent;


 


(vi)                              the
Calculation Agent or its agents, custodians or nominees shall incur no
liability hereunder except for loss sustained by reason of its gross
negligence, willful misconduct or bad faith;


 


(vii)                           The
Calculation Agent shall have the right, but not the obligation, to consult with
counsel of its choice and shall not be liable for action taken or omitted to be
taken in accordance with the advice of such counsel, which may be in-house
counsel;


 


(viii)                        The
Calculation Agent shall have the right to perform any of its duties hereunder
through agents, custodians or nominees; and


 


(ix)                                in
no event shall the Calculation Agent or its agents, custodians or nominees be
liable for special, punitive, indirect or consequential loss or damage of any 


 


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kind whatsoever
(including but not limited to lost profits) even if the Calculation Agent has
been advised of the likelihood of such loss or damage and regardless of the
form of action.


 


8.                                       (a)  The Calculation Agent or its agents,
custodians or nominees shall not be responsible to the Company or any third
party for any failure of any bank or financial institution selected by the
Calculation Agent for the purpose of quoting rates in accordance with the terms
of the Shares and the Articles Supplementary to fulfill their duties or meet
their obligations to provide such rates or as a result of the Calculation Agent
having acted (except in the event of gross negligence, willful misconduct or
bad faith) on any quotation or other information given by any such bank or
financial institution which subsequently may be found to be incorrect.


 


(b)  Except as
provided below, the Calculation Agent may at any time resign as Calculation
Agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective,
provided that such notice shall be given not less than 60 days prior to the
said effective date unless the Company otherwise agrees in writing.  Except as provided below, the Calculation
Agent may be removed by the filing with it of an instrument in writing signed
by the Company specifying such removal and the date when it shall become effective
(such effective date being at least 20 days after said filing).  Any such resignation or removal shall take
effect upon:


 


(i)                                     the
appointment by the Company as hereinafter provided of a successor Calculation
Agent; and


 


(ii)                                  the
acceptance of such appointment by such successor Calculation Agent;


 


provided,  however,
that in the event the Calculation Agent has given not less than 60 days’ prior
notice of its desired resignation, and during such 60 days there has not been
acceptance by a successor Calculation Agent of its appointment as successor
Calculation Agent, the Calculation Agent so resigning may petition any court of
competent jurisdiction for the appointment of a successor Calculation
Agent.  The Company covenants that it
shall appoint a successor Calculation Agent as soon as practicable after
receipt of any notice of resignation hereunder. 
Upon its resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of its compensation and the
reimbursement of all expenses (including reasonable counsel fees) incurred by
such retiring Calculation Agent pursuant to paragraph 5 hereof to the date such
resignation or removal becomes effective.


 


(c)  If at any
time the Calculation Agent (i) shall resign or be removed, or (ii) shall become
incapable of acting or shall be adjudged bankrupt or insolvent, or liquidated
or dissolved, or an order is made or an effective resolution is passed to wind
up the Calculation Agent, or if the Calculation Agent shall file a voluntary
petition in bankruptcy or make an assignment for the benefit of its creditors,
or shall consent to the appointment of a receiver, administrator or other
similar official of all or any substantial part of its property, or shall admit
in writing its inability to pay or meet its debts as they mature, or if a
receiver, administrator or other similar official of the Calculation Agent or
of all or any substantial part of its property shall be appointed, or if any
order of any court shall be entered approving any petition filed by or against
the Calculation Agent under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer shall take charge or control of the
Calculation Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation (the Calculation Agent hereby agreeing to give the
Company prompt notice of any of the foregoing events referred to in this clause
(ii)), then a successor Calculation Agent shall be appointed by the Company by
an instrument in writing filed with the successor Calculation Agent.  Upon the appointment as aforesaid of a successor



 


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Calculation Agent and acceptance by the latter of such appointment, the
former Calculation Agent shall cease to be Calculation Agent hereunder.


 


(d)  Any
successor Calculation Agent appointed hereunder shall execute and deliver to
its predecessor and the Company an instrument accepting such appointment
hereunder, and thereupon such successor Calculation Agent, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as the Calculation Agent hereunder, and such
predecessor, upon payment of its compensation, charges and disbursements then
unpaid, shall thereupon become obliged to transfer and deliver, and such
successor Calculation Agent shall be entitled to receive, copies of any
relevant records maintained by such predecessor Calculation Agent.


 


(e)  Any
corporation into which the Calculation Agent may be merged or converted or any
corporation with which the Calculation Agent may be consolidated or any
corporation resulting from any merger, conversion or consolidation to which the
Calculation Agent shall be a party or any corporation to which the Calculation
Agent may otherwise transfer all or substantially all of its corporate trust
business shall, to the extent permitted by applicable law, be the successor
Calculation Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.  Prompt notice of any such merger, conversion,
consolidation or transfer shall forthwith be given to the Company.


 


(f)  The
provisions of paragraphs 5 and 6 hereof shall survive any resignation or
removal hereunder.


 


(g)  The
Calculation Agent shall not be responsible or liable for any failure or delay
in the performance of its obligations under this Agreement or arising out of or
caused directly or indirectly, by circumstances beyond its reasonable control,
including acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riot; interruptions, loss or malfunctions of
utilities, or communications service; accidents; labor disputes; acts of civil
or military authorities or governmental actions; it being understood that the
Calculation Agent shall use its best efforts to resume performance as soon as
practicable under the circumstances.


 


9.                                       Any
notice or other communication required to be given hereunder shall be delivered
in person against written receipt, sent by letter or facsimile or communicated
by telephone (subject, in the case of communication by telephone, to
confirmation dispatched within two business days by letter or facsimile), in
the case of the Company, to it at the address of the Company set forth in the
heading of this Agreement, Attention: Paul Fisher, President, Facsimile: (630)
586-8010; in the case of the Calculation Agent, to it at the address set forth
below; or, in any case, to any other address of which the party receiving
notice shall have notified the party giving such notice in writing.


 


Calculation Agent:                                            SunTrust
Bank

919 East Main Street

Richmond, Virginia 23219

Attention: Corporate Trust Department, Mail Code HDQ 5310

Telephone: (804) 782-5170

Facsimile (804) 782-7855


 


10.                                 This
Agreement may be amended only by a writing duly executed and delivered by each
of the parties signing below.


 


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11.                                 The
provisions of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.


 


12.                                 This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.


 


13.                                 Except
as provided herein, this Agreement is solely for the benefit of the parties
hereto and their successors and assigns and no other person shall acquire or
have any rights under or by virtue hereof (whether or not the Shares are
issued).


 


14.                                 The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement.


 


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EXECUTION

VERSION


 


 


IN WITNESS WHEREOF, this
Agreement has been executed and delivered as of the day and year first above
written.


 


 


	
   

  	
  CENTERPOINT PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Michael Kraft

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Kraft

  
	
   

  	
   

  	
  Title:

  	
  Vice President and 

  
	
   

  	
   

  	
   

  	
  Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUNTRUST BANK, as Calculation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Patricia A. Welling

  	
   

  
	
   

  	
   

  	
  Name: Patricia A. Welling

  
	
   

  	
   

  	
  Title: First Vice President